R. Selvan Petitioner... v. State Through The In..., Madras High Court, Judgment, Law, casemine.com

Factual and Procedural Background

The Revision Petitioner is an accused in Special Case No. 4 of 2014 pending before the Chief Judicial Magistrate/Special Judge, Dindigul. During the trial, P.W.3 was examined in chief by the prosecution. The accused filed a petition under Section 242(3) of the Criminal Procedure Code (Cr.P.C.) seeking to defer the cross-examination of P.W.3 until L.W.4 and L.W.11, witnesses speaking on the same facts, were examined in chief. The trial Court dismissed this petition, relying on the Supreme Court decision in Vinoth Kumar v. State of Punjab. Aggrieved, the accused filed the present revision petition challenging the dismissal and seeking direction to defer the cross-examination of P.W.3 until examination of L.W.4 and L.W.11, in the interest of justice and fair trial.

Legal Issues Presented

Whether the trial Court erred in dismissing the petition to defer the cross-examination of P.W.3 until L.W.4 and L.W.11, who speak to the same facts, are examined in chief?

Whether the accused’s statutory right under Section 242(3) Cr.P.C. to defer cross-examination can be denied without valid reasons?

Whether the principles laid down in Vinoth Kumar v. State of Punjab are applicable to the facts of this case?

Arguments of the Parties

Revision Petitioner’s Arguments

When multiple witnesses testify on the same facts, the accused should not be compelled to disclose defence during cross-examination of one witness if others are not yet examined.

The accused’s statutory right under Section 242(3) Cr.P.C. to defer cross-examination should not be denied without valid reasons.

The proviso to Section 242(3) Cr.P.C. has not been struck down by the Supreme Court and remains applicable.

If all witnesses (L.Ws.2, 3, 4, and 11) had been examined on the same day, the petition to defer cross-examination would not have been necessary.

Respondent’s Arguments

The Supreme Court has directed subordinate courts to complete cross-examination of prosecution witnesses on the same day or the next day.

Adjournments should not be granted merely on the ground of deferring cross-examination.

The trial Court followed Supreme Court guidelines correctly and dismissed the petition legally and validly.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Vinoth Kumar v. State of Punjab (LAWS (SC)-2015-1-69)	Guidance on deferring cross-examination and trial procedure under Cr.P.C.	The trial Court relied on this decision to dismiss the petition; however, the revising Court found the facts of the present case distinguishable and held the precedent not applicable.

Precedent

Rule or Principle Cited For

Application by the Court

Vinoth Kumar v. State of Punjab (LAWS (SC)-2015-1-69)

Guidance on deferring cross-examination and trial procedure under Cr.P.C.

The trial Court relied on this decision to dismiss the petition; however, the revising Court found the facts of the present case distinguishable and held the precedent not applicable.

Court's Reasoning and Analysis

The Court acknowledged that L.Ws.2, 3, 4, and 11 were witnesses listed to speak on the same set of facts concerning demand of bribe and trap proceedings. It noted that while L.W.3 was examined in chief, L.Ws.4 and 11 were not produced on that date. The accused had filed a petition under Section 242(3) Cr.P.C. to defer cross-examination of P.W.3 until L.Ws.4 and 11 were examined. The trial Court dismissed this petition relying on Supreme Court directions for day-to-day trial proceedings and completing cross-examination promptly.

However, the revising Court emphasized that Section 309 Cr.P.C. mandates continuous trial proceedings but allows adjournment for valid reasons. The proviso to Section 242(3) Cr.P.C. explicitly permits deferring cross-examination until other witnesses are examined or recalling witnesses for further cross-examination. The Court found it proper in the interest of justice and fair trial to allow the deferral of cross-examination of P.W.3 until L.Ws.4 and 11 are examined. It distinguished the facts from those in Vinoth Kumar’s case, holding that the precedent was not applicable here.

Holding and Implications

The Court set aside the impugned order dated 20.09.2016 passed by the Chief Judicial Magistrate/Special Judge, Dindigul, and directed the trial Court to defer the cross-examination of P.W.3 until L.Ws.4 and 11 are examined in chief or recalled for further cross-examination.

The decision ensures the accused’s statutory right under Section 242(3) Cr.P.C. is upheld and promotes a fair trial by allowing witnesses speaking on the same facts to be examined in a coherent sequence. No broader precedent was created beyond the direct effect on the parties, which is the deferral of cross-examination in the trial proceedings.

R. Selvan Petitioner/Accused v. State Through The Inspector Of Police, Vigilance And Anti Corruption, Dindigul (Crime No. 12 Of 2010) /Complainant.

Prayer: Revision is filed under Section 397 r/w 401 of Cr.P.C., praying to call for the records pertaining to impugned order, dated 20.09.2016 passed by the Chief Judicial Magistrate/Special Judge, Dindigul in Cr.M.P. No. 895 of 2016 in Spl.Case No. 4 of 2014, set aside the same and direct the trial Court to defer the cross examination of P.W.3 till L.W.4 and L.W.11 are examined in chief in the interest of justice and fair trial.

A.M. Basheer Ahamed, J.

2. The Revision Petitioner herein is an accused in Spl. Case No. 4 of 2014 pending on the file of the learned Chief Judicial Magistrate/Special Judge, Dindigul. While P.W.3 was produced before the Court by prosecution and was examined in chief by the prosecutor and the respondent herein, the Revision Petitioner/accused filed a petition in Cr.M.P. No. 895 of 2016 on 20.09.2016, under Section 242(3) of Cr.P.C, for deferring the cross examination of P.W.3, till L.Ws.4 and 11 are examined in chief and the said petition was dismissed by the trial Court, referring the decision of the Hon'ble Apex Court in Vinoth Kumar v. state of Panjab reported in LAWS (SC)-2015-1-69.

3. Aggrieved by the same, the accused filed the Revision Petition to call for the records pertaining to the impugned order, dated 20.09.2016, passed by the learned Chief Judicial Magistrate/Special Judge, Dindigul in Cr.M.P. No. 895 of 2016 in Spl. Case No. 4 of 2014 and set aside the same and direct the trial Court to defer the cross examination of P.W.3 till L.W.4 and L.W.11 are examined in chief, in the interest of justice and fair trial.

4. The learned counsel appearing for the revision petitioner contends that, when a set of witnesses are cited to speak about the same facts, the accused cannot be compelled to disclose his defence during cross-examination of one among the said witnesses, when other witnesses are not produced by the prosecution for examination on that date itself and if the prosecution had produced and examined L.Ws.2, 3, 4 and 11, who are cited to speak about the same set of facts for examination in one and the same day, the accused would not have chosen to file a petition under Section 242(3) of Cr.P.C., praying to defer the cross-examination of P.W.3 and the statutory right conferred on the accused under Section 242(3) of Cr.P.C., should not be denied or taken away without assigning any valid reason and the Hon'ble Supreme Court has not struck down the proviso to Section 242(3) of Cr.P.C.

5. The learned Government Advocate (crl. side) appearing for the respondent reiterating the objections found in the counter statement of the respondent would contend that the Hon'ble Supreme Court has already given direction to the Subordinate Courts to cross-examine the prosecution witnesses on the same day, if not so, the cross examination should be completed on the next day and on this pretext, an adjournment should not be given and the trial Court had fully followed the guidelines stated by the Supreme Court and has rightly dismissed the petition. Hence, it is a legally valid order.

6. It is not disputed that L.Ws.2, 3, 4 and 11 are the listed witnesses found in the charge sheet to speak about the alleged occurrence of demand of bribe and trap proceedings and L.W.1, the sanctioning authority was examined as P.W.1 and was also cross-examined. Thereafter, L.W.2 was summoned and examined in chief as P.W.2 and cross examination of that witness was deferred by the trial Court. When L.W.3 alone was present, on summon, on a particular date and was examined in Chief as P.W.3 by the prosecution, the accused person has not chosen to cross-examine the said witness on the date itself, since L.Ws.4 and 11 were not produced by the prosecution for examination on the date and hence, the petitioner filed the impugned petition to defer the cross-examination of P.W.3 till L.Ws.4 and 11 are produced and examined by the prosecution. It is not denied that L.Ws.4 and 11 are not present in the Court on the date of chief examination of P.W.3 by the prosecution. In the above stated scenario, the accused is entitled to file the impugned petition for deferring cross-examination of P.W.3, till other witnesses, who speak about same set of facts are produced by the prosecution, in the interest of justice and also fair trial.

7. As per Section 309 of Cr.P.C., the proceedings in every trial shall be continued from day-to-day, until all the witnesses in attendance have been examined, unless the court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded. It is further stated that where a witness is present in Court, but a party or his pleader is not present, who are all his pleader though present in Court is not ready to examine or cross-examine the witnesses, the court may if thinks fit, record the statement of the witnesses and pass such orders as it thinks fit dispensing with the examination or cross-examination of the witnesses, as the case may be. The proviso to Section 242(3) of Cr.P.C., permits cross-examination of any witnesses to be deferred until any of the witness or witnesses have been examined or recall any witness for further cross-examination. When a specific proviso to sub Section 3 permits to make such an application for deferring the cross-examination of P.W.3 in this case it would be proper to allow the application by deferring the cross-examination of P.W.3, till the completion of chief examination of other witnesses ie., L.Ws.4 and 11 to speak about the demand of bribe on the trap proceedings. The facts referred to in the decision in Vinoth Kumar's case (cited supra) are not applicable in the case on hand.

8. Considering the above facts and circumstances of the case and in the interest of justice and fair trial of the case, this Court is inclined to set aside the impugned order passed in Cr.M.P. No. 895 of 2016 dated 20.09.2016, by the learned Chief Judicial Magistrate/Special Judge, Dindigul in Cr.M.P. No. 895 of 2016 and also direct the learned Special Judge to defer the cross-examiantion of P.W.3 till the examination of L.Ws.4 and 11, if not examined or recalled those witnesses, if they are examined in chief on deposition of witnesses to be fixed by the trial Judge.

9. In the result, the Criminal Revision is ordered with above observations.

Crl. RC (MD) No. 744 of 2016

R. Selvan Petitioner... v. State Through The In...